ORDER OF THE COURT (Chamber determining whether appeals may proceed)

18 March 2020 ([\*](#Footnote*))

(Appeal — EU trade mark — Prior determination as to whether appeals should be allowed to proceed — Article 170b of the Rules of Procedure of the Court of Justice — Request that the appeal be allowed to proceed failing to demonstrate that an issue raised by the appeal is significant with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)

In Case C–908/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 December 2019,

**European Food SA,** established in Drăgăneşti (Romania), represented by R. Dincă, V. Stănese, I.-F. Cofaru and I. Speciac, avocats,

appellant,

the other parties to the proceedings being:

**Société des produits Nestlé SA,** established in Vevey (Switzerland), represented by A. Jaeger-Lenz, C. Elkemann and A. Lambrecht, Rechtsanwälte,

applicant at first instance,

**European Union Intellectual Property Office (EUIPO),**

defendant at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, S. Rodin and N. Piçarra (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar,

makes the following

**Order**

1        By its appeal, European Food SA asks the Court of Justice to set aside the judgment of the General Court of the European Union of 10 October 2019, *Société des produits Nestlé* v *EUIPO — European Food (FITNESS)* (T‐536/18, not published, EU:T:2019:737, ‘the judgment under appeal’), whereby the General Court annulled the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 June 2018 (Case R 755/2018-2), in relation to invalidity proceedings between European Food and Société des produits Nestlé (‘the decision at issue’).

2        That decision was adopted to comply with the judgment of the General Court of 28 September 2016, *European Food* v *EUIPO — Société des produits Nestlé (FITNESS)* (T‐476/15, EU:T:2016:568), which annulled the decision of the Fourth Board of Appeal of EUIPO of 19 June 2015 (Case R 2542/2013–4) (‘the annulment judgment’), as well as the judgment of the Court of Justice of 24 January 2018, *EUIPO* v *European Food* (C‐634/16 P, EU:C:2018:30), which upheld that judgment of the General Court (‘the judgment on appeal’). By its decision of 19 June 2015, the Fourth Board of Appeal of EUIPO had rejected, as being belated, new evidence submitted for the first time before it, without taking it into consideration.

3        The Second Board of Appeal of EUIPO interpreted the judgments mentioned in the preceding paragraph of the present order as meaning that they required it to examine the appeal by taking into account evidence submitted for the first time before the Fourth Board of Appeal in the case that had led to the decision of 19 June 2015 and, consequently, declared the contested mark invalid on the basis of that evidence.

**Whether the appeal should be allowed to proceed**

4        Under the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a judgment or an order of the General Court concerning a decision of an independent Board of Appeal of EUIPO is not to proceed unless the Court of Justice first decides that it should be allowed to do so.

5        In accordance with the third paragraph of Article 58a of that Statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure of the Court of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.

6        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of EU law and containing all the information necessary to enable the Court of Justice to rule on that request.

7        In accordance with Article 170b(1) and (3) of those rules, the Court is to rule on the request that the appeal be allowed to proceed, as soon as possible, in the form of a reasoned order.

8        In support of its request that the appeal be allowed to proceed, the appellant states that the appeal raises two issues which are significant with respect to the unity, consistency and development of EU law.

9        First, the appellant alleges that the General Court failed to have regard to both the judgment on appeal and the annulment judgment, in breach of Article 91 of the Rules of Procedure of the Court of Justice, as well as Article 76(2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), in so far as it held, in paragraph 47 of the judgment under appeal, that the Second Board of Appeal of EUIPO misinterpreted these judgments as meaning that they required it to take the evidence at issue into account and consequently erred in failing to exercise, with regard to this evidence, the discretion conferred on it under Article 76(2) of Regulation No 207/2009, as well as to state the reasons on which its decision as regards the taking into account of that evidence was based. According to the appellant, that assessment of the General Court is in contradiction with paragraph 42 of the judgment on appeal, in which the Court of Justice held that it is always possible to submit such evidence in time for the first time before the Board of Appeal.

10      In the appellant’s submission, the appeal thus raises the question whether the Board of Appeal of EUIPO has, under Article 76(2) of Regulation No 207/2009, a discretion, which it must necessarily exercise, to decide whether it should take into account the evidence submitted in time during the appeal phase. According to the appellant, that question is significant with respect to the predictability, unity, consistency and development of EU law. In particular, the response to this ‘critical matter’ concerning the administration and the admissibility of evidence will have a major impact on all proceedings before the Boards of Appeal of EUIPO.

11      Secondly, the appellant alleges that the General Court failed to have regard to Article 65(2) and (3) of Regulation No 207/2009, in so far as it annulled the decision at issue, although, in the absence of the irregularity found by the General Court, the decision would not have been substantively different. The appeal thus raises the question whether, in those circumstances, the General Court should have refrained from annulling the decision at issue. According to the appellant, that question is significant with respect to the predictability and unity of EU law. In particular, the clarification of this issue is of major importance, including for the efficiency of the EU justice system and the activity of the Board of Appeal of EUIPO, given that ‘decisions such as the one under appeal in the present case tend to unreasonably increase the workload of EU institutions for purely formalistic motivations’.

12      For the purposes of examining the request that the appeal be allowed to proceed submitted by the appellant, it must be observed, as a preliminary point, that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (order of 16 September 2019, *Kiku* v *CPVO*, C‐444/19 P, not published, EU:C:2019:746, paragraph 11).

13      Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that Statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency or development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (order of 11 February 2020, *Rutzinger-Kurpas* v *EUIPO*, C‐887/19 P, not published, EU:C:2020:91, paragraph 10 and the case-law cited).

14      Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion (order of 24 October 2019, *Porsche* v *EUIPO*, C‐613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

15      As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment or order under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment or order under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question as well as those of the judgment or order of the Court of Justice or the General Court alleged to have been infringed, and secondly, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (order of 24 October 2019, *Porsche* v *EUIPO*, C‐613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

16      Therefore, a request that an appeal be allowed to proceed which does not contain all the information set out in paragraphs 14 and 15 of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (order of 24 October 2019, *Porsche* v *EUIPO*, C‐613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

17      In this case, as regards, first, the line of argument set out in paragraphs 9 and 10 of the present order concerning the first issue raised by the present appeal, it must be noted that the findings of the Court set out in paragraph 42 of the judgment on appeal, whereby it is always possible to submit evidence in time for the first time before the Board of Appeal in invalidity proceedings relating to a trade mark, without that evidence being automatically admissible, is not called into question by the conclusion reached in the judgment under appeal, based on paragraph 42 thereof, in so far as the Board of Appeal of EUIPO is not required to take into consideration the evidence submitted for the first time before it but must exercise the discretion which it enjoys in that regard under Article 76(2) of Regulation No 207/2009 and must state the reasons on which its decision as to whether or not to take that evidence into account is based.

18      As the Court has stated in paragraph 56 of the judgment on appeal, it is apparent from Article 76(2) of Regulation No 207/2009 that, while the submission of facts and evidence by a party remains possible after the expiry of the time limits to which that submission is subject, such belated submission is not capable of conferring on that party an unconditional right to have those facts and evidence taken into account by EUIPO, which enjoys a broad discretion to decide whether or not to take those facts and evidence into account, while giving reasons for its decision in that regard.

19      Thus, the appellant’s line of argument is not capable of establishing the significance of the first issue raised by the present appeal with respect to the unity, consistency or development of EU law.

20      Secondly, in respect of the line of argument set out in paragraph 11 of the present order concerning the second issue raised by the present appeal, it is sufficient to note that the grounds relating to the efficiency of the EU justice system and the activity of the Board of Appeal of EUIPO are not relevant for the purposes of establishing the significance of an issue for the unity of EU law.

21      In those circumstances, it must be held that the request submitted by the appellant is not capable of establishing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

22      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.

**Costs**

23      Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

24      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

**The appeal is not allowed to proceed.** **European Food SA shall bear its own costs.**

Luxembourg, 18 March 2020.

Signatures

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[\*](#Footref*)      Language of the case: English.